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Wind Farm Permitting In National Forests

On April 2, 2009, the Forest Supervisor for the George Washington National Forest wrote a letter, available at http://www.windaction.org/documents/20686, denying a permit application which had sought to place three wind monitoring towers within the National Forest boundary. The permit applicant, FreedomWorks, LLC, is a renewable-energy company based in Harpers Ferry, West Virginia. The wind monitoring towers were the first step of a wind energy project proposed by FreedomWorks which envisioned constructing 131 large wind turbines on top of a mountain range straddling the border between West Virginia and Virginia.  

The Forest Supervisor’s letter explained that the permit was denied because the proposal did not comply with the standards of the forest management plan for the area, which is managed as Remote Habitat for Wildlife, because it would have created too many open roads, would have violated the visual standard of the forest, would have changed the character of the forest for visitors, and may have impacted local bat populations already threatened by of an unrelated disease. Additionally, the Forest Supervisor denied the permit because FreedomWorks did not adequately explain why the wind project could not be built on private land rather than in the National Forest. 

The FreedomWorks project would have created roughly sixteen miles of roads, significantly more than the .9 miles of roads that already existed in the area. While these roads would not have been open to the public, the Forest Supervisor claimed that the traffic from the contractors alone would have interfered with the management goal of having a mature forest environment. The Forest Supervisor likewise claimed that the road and the towers would interfere with the “Semi-Primitive Motorized” character of the area, which allows visitors to be “removed from human activity and experience solitude and serenity” while providing an “[o]pportunity for self-reliance, challenge, and risk”.  

The towers were also denied because they would not have complied with the “partial retention” visual standard of the forest, which requires that all man-made structures remain visually subordinate to the natural landscape. Reaching 400 feet in height, the Forest Supervisor felt that the wind towers and turbines would clearly violate this visual standard. Finally, the Forest Service claimed that the emergence of “White Nose Syndrome”, a disease which has been harming nearby bat populations, created an increased concern that the impacts of the turbines on bats in the area would be especially devastating. 

    The second area of concern that the Forest Supervisor had with the proposal was that FreedomWorks failed to explain why National Forest land had to be used for the project. National Forest policy dictates that land-use proposals should be denied “when the request is based solely on affording the proponent with a lower cost or less restrictive location than can be obtained on non-Federal lands”. The Forest Supervisor claimed that within 100 miles of Washington, D.C., which was the intended market for the power generated by the windmills, there are numerous privately owned mountain ridges and opportunities for off-shore wind farms.  

This rejection letter from the George Washington National Forest is significant because it calls into question whether many of the most suitable sites for wind farms will be available for development. If one looks at a map of the best locations for potential wind farms in the mid-atlantic region, available at http://www.windpoweringamerica.gov/images/windmaps/wv_50m_800.jpg, and overlays that with a map which shows the 1.2 million acres of the Monongahela and George Washington National Forests, available at http://www.fs.fed.us/sopa/state-level.php?wv, one quickly discovers that many of the best wind farm locations are on National Forest land. To date, no wind turbines have been proposed in the Monongahela National Forest, which contains many sites that are most amenable for wind development. If the Monongahela National Forest proves to be as unreceptive to wind farms as the George Washington National Forest has been, states could find they are largely cut out of what may prove to be an emerging market for wind power.  

National Forests are routinely utilized by private individuals for timber harvesting, livestock grazing, and recreation businesses. Therefore, before the recent letter of denial from George Washington National Forest, it seemed possible that National Forest lands might be leased for wind farms. The denial letter, combined with the years of delays which the nation’s only other wind project in Vermont’s Green Mountain National Forest has endured http://www.windaction.org/news/14904, makes clear that private companies in any state wishing to acquire a wind farm lease in any National Forest throughout the country will face an uphill battle.  

This article was authored by Donnie L. Adkins, Jackson Kelly PLLC. For more information on the author see here.

Coal Mining Permits Remain In A Regulatory “Black Hole”

National Mining Association (“NMA”) President and CEO Hal Quinn supports the inquiry initiated by Rep. Zack Space (D-Ohio) and other members of the Ohio River Valley congressional delegation regarding the status of coal mining permit applications. According to NMA, efforts by Rep. Space and eight additional members of the House have succeeded in exposing the regulatory black hole that coal mining permits have fallen into. In response to their inquiry of the U.S. Army Corps of Engineers (“Corps”), the Corps confirms the following: 

• 235 permits are still undergoing review at five district Corps offices; 

• 22 individual permits are in the final stages of review; and 

• 17 nationwide permits are in the final stages of review. 

The Corps, however, offers the delegation no timeline or clearly defined process for when the fate of these permits finally will be resolved, including the fate of those now in final review. Rather, the Corps notes that not until June 11 did the Environmental Protection Agency (“EPA”) provide the Corps offices with the list of factors EPA intends to use for their review considerations. The Corps also points to a series of interagency task force deliberations and a challenging and complex process.  

While it is a positive step the Corps has provided a final clarification of the number of permits in the review process, the NMA shares the deep concern expressed by the nine Members of Congress. These concerns are for the grave consequences the delay in coal mining permit approval will have on national, state and local economies. Many of these permits continue to languish in a regulatory process that is frustrating rather than promoting job creation, economic development and energy independence.  

While EPA has made assurances over the last few months that 42 permits would soon be issued, there has been no evidence of any change. In effect, the de facto moratorium on permits that commenced on March 4, 2009 continues without any meaningful progress.  

This article was authored by Donnie L. Adkins, Jackson Kelly PLLC. For more information on the author see here.

Hyperion Obtains PSD Air Permit for First New US Refinery Since 1976: Stringent permit receives sharp criticism from Environmentalists

Privately held Hyperion Resources Inc. plans to build an $8 billion to $10 billion oil refinery, the first new refinery in the United States since 1976, at a site in rural Union County, South Dakota. On August 20, 2009, the planned refinery passed a major regulatory hurdle -- the South Dakota Board of Minerals and Environment unanimously (9-0) approved the plant’s air permit after saying Hyperion has met the requirements set in South Dakota law and rules. But opponents say they likely will file a court appeal to try to overturn the board's decision. 

The air permit marks the second permitting milestone for the Hyperion Energy Center (HEC), with the first being the required zoning change that was passed by the Union County Planning Commission, the Union County Commissioners, and then the county’s voters by a 58-42 margin 14 months ago. In addition, a recent ruling by the South Dakota Supreme Court ended opponents’ efforts to challenge the zoning change. 

In light of the air permit issuance, the anticipated timetable for HEC to begin construction is 2011, with planned startup in 2015. But first, the HEC must clear its next big hurdle -- application for a water quality permit to obtain and then discharge water used for cooling, steam generation and other refinery process uses. 

Dallas-based Hyperion says the 400,000 barrels per day refinery will be part of "the most environmentally sound energy center in the United States". The refinery will produce ultra-low sulfur gasoline, ultra-low sulfur diesel, and jet fuel, plus will include an Integrated Gasification Combined Cycle (IGCC) 532 MW power plant fueled by petroleum coke byproduct from the refinery to supply hydrogen, steam and electricity back to the refinery. 

The HEC will use multiple air pollution control devices to reduce sulfur dioxide, nitrogen oxides, volatile organic compounds and particulate matter. According to Hyperion estimates, the HEC’s emissions of regulated air pollutants will be much lower than comparable facilities: 

·     The refinery will emit 80% less air pollutants than the average operating refinery in California, and nearly 90% less than the average operating refinery in the US.

·     The IGCC power plants normalized emissions will be approximately 1/30th of the emissions of George Neal power plant in Port Neal, Iowa, and 1/60th of the existing Big Stone Power Plant near Milbank, South Dakota.

·     The IGCC is designed to be carbon capture ready for over 90% of the carbon dioxide generated from gasification. 

The plant will refine crude from the Canadian oil tar sands in Alberta, and obtain its crude from the TransCanada Corp. Keystone oil sands crude pipeline, being built from Alberta to Illinois. The pipeline is scheduled to begin operation in 2009. 

Hyperion expects construction of the HEC to last four years and employ an average construction employment of 4,500.  Once operational, the refinery expects to employ 1,800 people. The refinery will be located about 10 miles north of the town of Elk Point, whose population is around 2,000, situated in southeast South Dakota near the borders of Iowa and Nebraska. The nearest larger city to the refinery site is Sioux City, IA, located about 30 miles to the southeast.

Eric Williams, a spokesman for Hyperion, said the company has known all along that the proposed facility would be under a microscope. "The Hyperion Energy Center will be state of the art and the most environmentally sound in the nation," Williams wrote in an e-mail. 

Sierra Club Objections

Holly Bressett, a Sierra Club spokeswoman, said the organization had found several problems with the proposed refinery and the South Dakota Environment and Natural Resources' draft preconstruction air-quality permit. 

"The facility would convert agricultural land to industrial use," Bressett said. "… there would be significant air pollution emitted from the facility. There doesn't seem to be a discussion on the impacts that the mining (of tar sands oil) would have in Canada. I think it's safe to say the Sierra Club is questioning the designation of this refinery as a green facility." 

"The Hyperion refinery is set to burn or refine tar sands," Bressett said. "We're working very closely with our sister organization Sierra Club Canada to address the environmental impacts of tar sands mining in Canada." 

Oil extracted from the tar sand fields near Fort McMurray in northern Alberta is so thick it must be treated or diluted to flow through a pipeline. Critics contend the "sour'' crude contains a higher sulfur content and more heavy toxic compounds than the lighter "sweet'' crude imported from the Middle East and other regions. 

In addition to the Sierra Club, opponents to HEC include local groups Save Union County and Citizens Opposed to Oil Pollution, who contend that the proposed refinery near Elk Point would emit too much pollution and hurt the quality of life in the area. 

USEPA Region 8 Comments 

On November 14, 2008, USEPA Region 8 provided its comments on the South Dakota DENR Draft PSD permit. The 23-page document included wide-ranging comments, questions and suggested revisions of the state air agency’s draft permit format, contents and basis. A link to the Region 8 comments is provided below. 

For further details on the air permit for the proposed Hyperion Resources Inc. oil refinery in South Dakota, see the following web sites: 

• South Dakota DENR Hyperion Energy Center - Environmental Permits

http://denr.sd.gov/Hyperion.aspx   

• Hyperion Energy Center

http://www.hyperionec.com/  

• Sierra Club of South Dakota

http://southdakota.sierraclub.org/LivingRiver/oilrefinery.htm  

• Region 8 Comments on Draft PSD Permit

http://southdakota.sierraclub.org/LivingRiver/Pages_from_EPA_comment.pdf  

This article was excerpted from publically available information, and was authored by Rick Wilson, Acacia Environmental Group LLC.  Any opinions expressed in this article are those solely of the author. For more information on the author see here.

WV Voluntary Land Stewardship Program (Trust)

Early in 2009, the West Virginia Department of Environmental Protection (WVDEP) brought together a group of stakeholders representing various business interests and trade associations (Dow Chemical Company, Exxon/Mobil, FMC Corporation, WV Coal Association, WV Chamber of Commerce, WV Manufacturers Association), WVDEP, USEPA Region III, and the WV Development Office to form an Institutional Controls (IC) Focus Group. The WVDEP tasked this Group with the following objectives: 

·     Evaluate the current status/best practices of risk-based remediation and related land use controls. 

·     Evaluate the feasibility/framework of the WVDEP developing/implementing a West Virginia Voluntary Land Stewardship Program (VLSP). 

The efforts of the IC Focus Group are supported by an IC Work Group, which consists of representatives from Marshall University, WVDEP, and a consultant who facilitates the meetings. The IC Focus Group and the IC Work Group met during February, April, June, and August 2009, and two additional meetings are scheduled for this year. The goal of this blog article is to summarize the background leading up to this effort and what a VLSP might look like.  

A.)  Background.

For years, the performance of site cleanups in West Virginia was based on achieving an unrestricted future land-use; e.g. residential level. One result of this approach was that federal and state environmental programs developed a backlog of sites that were not being addressed, since the technology to remediate soil, sediment, and groundwater to such pristine levels was often not available or could only be implemented at an unacceptable cost.  

In July 1997, West Virginia implemented the Voluntary Remediation and Redevelopment Rule (VRRR, 60CSR3). A primary goal of the VRRR was to allow the use of risk-based approaches to remediation, so that sites could be remediated to less restrictive levels (e.g., industrial) rather than residential. Any engineering or institutional controls (e.g., future land-use deed restrictions) that must be implemented to meet the level of cleanup desired (residential or industrial) are described in a Land Use Covenant (LUC). Under the VRRR, the LUC must be recorded with the property deed at the respective County Court House for the Certificate of Completion (COC) to become effective. It should be noted that the LUC remains with the property deed for as long as engineering and/or institutional controls are in place (e.g., theoretically, in perpetuity). 

Over the last several years, the WVDEP has come to believe that the COC is an imperfect way to enforce the provisions of the LUCs over time. Therefore, the WVDEP has taken several actions (some legislative, some not) in recent years to address their concern: 

·     First, West Virginia enacted the Uniform Environmental Covenant Act (UECA), which was integrated into the VRRR in July 2008. UECA modified LUCS. However, even with these modifications, the WVDEP believes that UECA still does not address the practical aspect of determining whether the provisions of LUCs are being violated over time.  

·     Second, in addition to incorporating UECA, the VRRR was revised to require regular certification by the applicant or property owner that the site is being used in compliance with the provisions of the LUC. In general, WVDEP anticipates that the inspections should be formed and certifications be submitted to the WVDEP, at a minimum, on an annual basis. 

·     Third, WVDEP recently joined Miss Utility as a participating member and now receives notification of excavation and subsurface disturbance activities at VRP sites, as the utilities do. The WVDEP (Division of Land Restoration Project Managers) is reportedly responding to approximately 300 “tickets” issued by Miss Utility per year.  

·     Fourth, although not originally envisioned when the VRRR was implemented in July 1998, the WVDEP (Division of Land Restoration Project Managers) is now performing an annual inspection at each site that has been issued a Certificate of Completion (COC) under the Voluntary Remediation Program (VRP). 

As a result of the third and fourth actions, WVDEP feels that it now has a practical way of enforcing LUCs, but WVDEP believes that some risk of exposure remains because not all site activities require excavation nor does everyone use the Miss Utility service. The WVDEP is also concerned that the time required by its current staff to implement these actions is causing time-constraints that detracts from their ability to support ongoing sites entered into the VRP. In addition, the WVDEP reports that it has not received, nor is likely to receive funding from the Legislature to perform the activities described in the third and fourth actions. 

WVDEP believes that the issue of monitoring LUCs over time has become a major concern and one that could threaten the long-term viability of risk-based closures in West Virginia, since the potential exists for such sites to be redeveloped in the future in ways that would violate the LUCs and place individuals or the environment at an unacceptable risk. WVDEP feels that this risk is further compounded by the steadily increasing number of sites being closed under the VRP, while payroll and staff available to address this issue are not increasing. WVDEP reports that nearly 50% of the Division of Land Restoration’s Project Managers are eligible for retirement within the next four years, taking their site-specific knowledge of the sites and their LUCs with them. 

Finally, a couple of pertinent facts should be noted relative to this effort to develop a West Virginia Voluntary Land Stewardship Program (VLSP): 

·     Pennsylvania had developed a similar program, referred to as the “Guardian Trust,” earlier in this decade. The program was ultimately not adopted by the State. 

·     The USEPA is hoping that West Virginia will help figure out how to monitor these sites in perpetuity, and has provided West Virginia with a $100,000 grant to assist in the process, which can include implementation of a Voluntary Land Stewardship Program (VLSP). 

B.)    What is a VLSP?

As described in the Meeting Minutes from the June 24, 2009 WVDEP IC Focus Group Meeting, the VLSP would be a “comprehensive integrated system for implementing, monitoring, tracking, and protecting institutional and engineering controls.” A “Trust” would be established that would have fiduciary responsibilities for managing funds that would be placed into the Trust by the holder of the LUC (e.g., the original VRP applicant and/or the property owner). At present, it is envisioned that the VLSP would be a 501(c) non-profit charitable trust that would continue into perpetuity.  

The funds in the Trust would then be used to perform a range of services on behalf of the applicant/property owner. The term of service and specific services would be tailored for each individual site. As currently envisioned, the VLSP might provide the following tier of services, which may expand over time: 

·     Establish or maintain any institutional controls (e.g., environmental covenants, easements, deed notices, restrictions and/or prohibitions on land-use or allowed activities) by filing such documents or updating them when the site is leased, conveyed, subdivided, or when land disturbance activities occur. 

·     Conduct physical inspections. 

·     Monitor and/or operate any treatment systems (e.g., groundwater treatment, soil vapor extraction, or monitored natural attenuation), collect environmental samples, and prepare reports. 

·     Conduct periodic review of county land records to monitor transfers or deed filings. 

·     Develop an administrative record concerning the remediation of the Site in an electronic database, respond to inquiries, and coordinate the sharing of data amongst various stakeholders, such as the WVDEP, other regulatory agencies, economic development agencies, potential purchasers, land owners, and tenants. 

·     Develop and maintain records and information for posting on the WVDEP environmental registry (publicly accessible), which is to be created, to track LUCs. 

·     Coordinate and share data with the WV Miss Utility system. 

This article was authored by Greg Tieman, Acacia Environmental Group LLC. For more information on the author see here. 

West Virginia CCS Working Group Holds Inaugural Meeting

            The inaugural meeting of the West Virginia Carbon Capture and Sequestration Working Group was held in Charleston, West Virginia on August 12, 2009.  

            The Group agreed that meetings of the full Group should be conducted under the Open Governmental Proceedings Act and that the Group would utilizing DEP’s website as a place to post resource material and communications related to the work of the Group.  

            Jeff Knepper, of DEP, made a presentation regarding the Appalachian Power Mountaineer Plant CCS permit. An additional presentation was made by Dr. Grant Bromhal of NETL providing the Group with an overview of CCS activities.  

            The Group selected Stephanie Timmermeyer to be the Chair of the Working Group and Tim Grant of NETL to be the Vice-Chair.    

            The Group will meet again on September 16, 2009 with Ken Nemeth of the Southern States Energy Board and Kevin Bliss, of the Interstate Oil and Gas Compact Commission, invited to offer presentations. That meeting will also be used to identify issues for the Group to address and establish the process by which the Group’s activities will be conducted. 

            The members of the West Virginia CCS Working Group are:

Grant S. Bromhal - National Energy Technology Laboratory

Nick Carter - National Council of Coal Lessors, Inc.

Alan M. Dennis - Penn Virginia Resource Partners, LP

David M. Flannery - Jackson Kelly, PLLC

Timothy C. Grant - National Energy Technology Laboratory

Billy Jack Gregg                      

Calvin A. Kent - Marshall University

Leonard Knee - Bowles Rice McDavid Graff & Love, LLP

Paul S. Kramer - Allegheny Energy, Inc.

James L. Laurita, Jr. - MEPCO, LLC

John Leeson - Dominion

Tim Mallan - Appalachian Power

David B. McMahon - West Virginia Surface Owners Rights Organization

Earl E. Melton - West Virginia Public Service Commission

Kenneth J. Nemeth - Southern States Energy Board

Stephanie R. Timmermeyer - Timmermeyer PLLC

Richard A. Winschel - CONSOL Energy, Inc.

Vickie Wolfe - West Virginia Environmental Council  

This article was authored by David M. Flannery, Jackson Kelly PLLC. For more information on the author see here.

Staff Paper Reinstated In NAAQS Review Process

EPA announced May 21, 2009, that Administrator Lisa P. Jackson is reinstating a document known as the “Staff Paper,” which contains agency scientists’ analyses of options for the Administrator to consider when setting a NAAQS. During the Bush Administration, the staff paper was replaced with an Advance Notice of Proposed Rulemaking (ANPR) that outlined potential options for air quality standards in the Federal Register. The ANPR was issued after completion of the agency’s scientific and technical risk/exposure assessments. In announcing the reinstatement of the Staff Paper, Administrator Jackson faulted the ANPR approach for delaying the issuance of new and/or revised NAAQS and for introducing policy options that were unsupported by the science. The new process applies to NAAQS currently under review, including the nitrogen dioxide and sulfur dioxide primary standards, the nitrogen dioxide and sulfur dioxide secondary standards, and the carbon monoxide standards.  

The NAAQS review process had been in place for more than twenty years in December 2005, when EPA Deputy Administrator Marcus Peacock asked William Wehrum, EPA Acting Assistant Administrator for Air and Radiation, and George Gray, EPA Assistant Administrator for Research and Development, to conduct a “top-to-bottom” review of the process. This “top-to-bottom” review focused on the following key questions: (1) timeliness of the NAAQS review process; (2) consideration of the most recent available science; (3) distinctions between science and policy judgments; and (4) identifying, characterizing, quantifying, and communicating uncertainties in scientific information.

As part of this “top-to-bottom” review, EPA asked current and former members of its Clean Air Scientific Advisory Committee (CASAC) for their views of the process for setting NAAQS. Individual members submitted comments, and CASAC responded by letter dated May 12, 2006. CASAC described the goal of the NAAQS review process as answering a “critical scientific question,” i.e., “What evidence has been developed since the last review to indicate if the current primary and/or secondary NAAQS need to be revised or if an alternative level or form of these standards is needed to protect public health and/or public welfare?” 

In its May 2006 letter, CASAC made six recommendations. First, CASAC recommended the elimination of the “comprehensive” Air Quality Criteria Document and the creation of a “streamlined” version of the Science Assessment document. Second, CASAC recommended a science workshop involving EPA staff, CASAC members, and the public as the first step in the 5-year review of each NAAQS. Third, CASAC recommended EPA develop a Science Assessment document equivalent to the integrative synthesis chapter of the Air Quality Criteria Document and also include what was in the Staff Paper.  Fourth, CASAC recommended that a combined Science and Policy Assessment document be developed and supplemented by the Risk/Exposure Assessment document. Fifth, CASAC recommended that EPA develop and maintain an electronic database of all publications on the criteria air pollutant undergoing evaluation. Sixth, CASAC critiqued the release of the Policy Assessment document as an ANPR, stating that the “merits” of the “opportunity to comment” on the ANPR and the proposed rule were unclear, explaining that: “The only reason that CASAC would want or need to comment on an ANPR – or for that matter, on a proposed rule – is if it did not agree with the EPA’s proposal, i.e., CASAC’s scientific recommendations were not adopted by the Agency.”

Following the input of CASAC, EPA announced in June 2006 that it intended to start incorporating into NAAQS reviews certain recommendations by CASAC, including combining separate planning activities into one Integrated Planning document that focused on policy-relevant issues, restructuring the Air Quality Criteria Document into a concise Science Assessment document, and preparing concise Risk/Exposure Assessment documents with an enhanced focus on characterizing uncertainties. EPA rejected CASAC’s objections to the ANPR, however, and replaced the Staff Paper with the ANPR.

Following the completion of the NAAQS review for lead, CASAC again wrote EPA and offered recommendations concerning implementation of the revised NAAQS process. CASAC approved of the science workshop and the Integrated Planning document but “express[ed]…serious concerns” regarding the ANPR. CASAC said that it had been assured that the ANPR would be “functionally identical” to the Staff Paper but found that the “ANPR for the lead NAAQS did not contain any such ‘policy assessment’ of scientific and technical information as described in the Deputy Administrator’s…2006 memo.” CASAC complained that the ANPR “simply laid out all NAAQS policy options for consideration by the Committee and the public while omitting the fundamental scientific rationale for many of them, or even the relative scientific merits of the different alternatives.”  

Under the Bush Administration, the NAAQS review process included: (1) a science workshop convened by EPA at the beginning of each NAAQS review cycle to discuss new scientific evidence acquired since the last review of each pollutant, and to receive CASAC and public input concerning policy-relevant questions and/or science issues, as the basis for the development of an Integrated Planning document (as recommended by CASAC); (2) the replacement of the voluminous Air Quality Criteria Document with an Integrated Science Assessment, a more concise, integrated assessment of the policy-relevant science; (3) the publication of a stand-alone Risk/Exposure Assessment document focused on key results, observations, and uncertainties; and (4) the replacement of the Staff Paper with a policy assessment that reflects the views of EPA management, published in the Federal Register as an ANPR. 

Many of these changes that were made to the NAAQS review process by the Bush Administration are being kept. The changes by the Bush Administration that are being kept include a public workshop early in the planning phase and the development of one integrated review plan that highlights key policy-relevant issues. EPA is also keeping the Bush Administration’s changes to the Air Quality Criteria Document. Additionally, EPA’s Office of Research and Development will continue to develop and implement an electronic database of scientific studies.  

Going forward, the major elements of the new process for reviewing NAAQS include: 

§         Planning: The process begins with a kick-off workshop and preparation of a draft integrated review plan (IRP). Before issuance of a final IRP, the draft IRP is released for consultation with CASAC and public comment.

 

§         Integrated Science Assessment (ISA): First and second drafts of the ISA will be released for CASAC review and public comment. In addition, there will be a science consultation with experts specializing in assessments of health and environmental scientific information in other federal agencies, including the National Institute of Health, the Centers for Disease Control and Prevention, the Agency for Toxic Substances and Disease Registry, the National Institute for Occupational Safety and Health, and the National Park Service, to solicit their input and comment on the science assessment. EPA’s Office of Research and Development will continue to develop and implement an electronic database to identify, characterize, and prioritize new scientific studies.

 

§         Risk/Exposure Assessment (REA): The REA will provide a concise presentation of methods, key results, observations, and related uncertainties. The scope and methods planned for use in conducting the assessment will be discussed in a planning document to be prepared in concert with the first draft ISA. The first draft REA will then be linked to the second draft ISA, and the second draft REA will be linked to the development of the final ISA. Like the ISA, the REA will be subject to CASAC review and public comment as well as special outreach to experts in other federal agencies focusing on assessment of health and environmental risk.

 

§         Policy Assessment: The Staff Paper, which includes EPA staff analysis of the scientific basis for alternative policy options for consideration by senior EPA management before rulemaking, is reinstated, and the use of an ANPR is discontinued.

 

§         Rulemaking: EPA will propose a new or revised NAAQS for public comment and after taking public comment into consideration will promulgate a final NAAQS.

 

For additional information on EPA’s revised NAAQS review process, contact Gale Lea Rubrecht at galelea@jacksonkelly.com or 304-340-1200. 

This article was authored by Gale Lea Rubrecht, Jackson Kelly PLLC. For more information on the author see here.

Eighth Circuit Applies Fractured Supreme Court Decision to Minnesota Wetlands

            In another decision that applies the Supreme Court’s 2006 4-1-4 opinion in Rapanos v. United States, 547 U.S. 715, the Eighth Circuit has determined that it will apply the decision so that it operates with the least restriction over the Clean Water Act (CWA) jurisdiction of the Corps of Engineers. In the process it affirmed a district court decision that upheld Corps jurisdiction over the site (a road constructed in wetlands), denied an after-the-fact permit, and upheld a Corps imposed restoration plan that required the removal of the road.  

            The facts of the case demonstrate the consequences that can follow when a structure is built in the absence of a CWA §404 permit. The landowner constructed a road 66 feet wide and a quarter mile in length on property he owned along the lakefront of Lake of the Woods in northern Minnesota. The road was intended to serve a proposed property development of 14 lots each of which would have approximately 100 feet of property along the lake. Ditches were constructed and more than 2500 cubic yards of gravel were placed on the excavated corridor to complete the road.      

Although consultation with county officials revealed that most of the acreage consisted of wetlands, no CWA §404 permit was sought from the Corps before the road work began in the summer of 1998. The Corps was notified at the same time as local officials of the construction, and treated the notification as an application for an after-the-fact permit.  

            The following summer the landowner attempted to upgrade the road to meet local requirements that would allow the road to be dedicated to the county and the land platted for development. The plat and road were accepted by the local authority by the end of 1998, but in June 2001, the Corps denied the permit application and ordered that the site be restored by removing the ditches and gravel surface and controlling for non-native plants and weeds for three years. When the landowner refused to comply with the restoration order, the Corps brought its enforcement action in the district court. 

            Before addressing the merits of the appeal, the Eight Circuit analyzed at length the Supreme Court’s 2006 Rapanos opinion. Its discussion reveals why the unusual 4-1-4 division of the Court makes the subsequent application of the holding in the case so difficult. The plurality opinion in Rapanos imposed two findings that had to be made before a public water was deemed to be a navigable water and thus within the Corps’ jurisdiction. First, it had to be a relatively permanent body of water connected to traditionally navigable water. Second, in the case of wetlands, the wetland must have a continuous surface connection with that water. 

            Although Justice Kennedy joined with the plurality in the judgment of the Court in remanding with the case, he rejected the tests imposed by the plurality opinion. Instead, he employed a “nexus” test that finds jurisdiction over the wetland at issue if it could “significantly affect the chemical, physical, and biological integrity of the covered waters” understood to be navigable. 

            The four dissenting members, although disagreeing with both the plurality and Justice Kennedy, nevertheless noted that the Corps jurisdiction under the CWA could be established using either set of tests. The Corps has elected to follow this practice, although it theoretically examines an application using the “nexus” test on a case by case basis.  

            As a matter of legal interpretation, no consensus has emerged among the circuit courts about what is the correct standard to apply. In theory the principle of law expressed in Marks v. United States, 430 U.S. 188 (1977) is that the Court’s holding will be that position taken by the members who concurred in the judgment on the narrowest grounds. The difficulty comes in deciding which opinion is the narrowest ground of decision in Rapanos. 

            Three circuits, the Eleventh, Ninth and Seventh, have decided that Justice Kennedy’s concurrence is the most narrow, meaning that it is the least restrictive of Clean Water Act jurisdiction, and each has employed it in their decisions. In comparison, the First Circuit has determined that the Marks test is unworkable as applied in the context of Rapanos.  It has elected to follow the instructions of the Rapanos dissent and apply whichever test results in a finding of jurisdiction. The Fifth and Sixth circuits have not yet decided what the proper standard is, but have found that jurisdiction had been established under both the plurality and Justice Kennedy’s opinions in cases decided by the district courts. 

            The Eight Circuit agreed with the First Circuit that the Marks test is unworkable; hereafter, jurisdiction may be found under either the plurality or Justice Kennedy’s tests.  

            Two conclusions can be drawn from the Eighth Circuit’s recent opinion. The first is that the Supreme Court – sooner or later – will have to re-visit the legal basis for the Corps’ jurisdictional authority over streams and channels. Despite a complete rejection by a majority of the Court, including Justice Kennedy, of the traditional criteria by which the Corps asserts its authority, the Corps appears unable to reach any decision in which it denies its own jurisdiction. 

            The second conclusion is a more practical one: do not build a structure in a wetland or any steam without proper authorization from the Corps. In addition to penalties imposed for acting without a permit, the Corps can order one to remove it. 

            For additional information about this case, or the Corps’ authority over waters of the United States, contact Blair Gardner at 304 340-1146.  

This article was authored by Blair M. Gardner, Jackson Kelly PLLC. For more information on the author see here.

2002 National-Scale Air Toxics Assessment

On June 24, 2009, US EPA released the 2002 National Assessment of Toxic Air Pollutants. The National-Scale Air Toxics Assessment (NATA) is EPA's ongoing comprehensive evaluation of air toxics in the U.S. EPA developed the NATA as a state-of-the-science screening tool for State/Local/Tribal Agencies to prioritize pollutants, emission sources and locations of interest for further study in order to gain a better understanding of risks.  NATA assessments do not incorporate refined information about emission sources, but rather, use general information about sources to develop estimates of risks which are more likely to overestimate impacts than underestimates them. NATA provides estimates of the risk of cancer and other serious health effects from breathing (inhaling) air toxics in order to inform both national and more localized efforts to identify and prioritize air toxics, emission source types and locations which are of greatest potential concern in terms of contributing to population risk.  This in turn helps air pollution experts focus limited analytical resources on areas and or populations where the potential for health risks are highest.  Assessments include estimates of cancer and non-cancer health effects based on chronic exposure from outdoor sources, including assessments of non-cancer health effects for Diesel Particulate Matter (PM). Assessments provide a snapshot of the outdoor air quality and the risks to human health that would result if air toxic emissions levels remained unchanged. 

This the third study completed. Earlier studies were based on 1996 and 1999 emission data. The 1996 assessment included 33 air pollutants (a subset of 32 air toxics on the Clean Air Act’s list of 187 air toxics plus diesel particulate matter (diesel PM). The 1999 assessment included 177 hazardous air toxics plus diesel PM. The 2002 assessment included 180 air toxics plus diesel PM. The 2002 NATA list is available here.  

The 2002 NATA estimates that most people in the United States have an average cancer risk of 36 in 1 million if exposed to 2002 emissions levels over the course of their lifetime. Benzene was the largest contributor to the increased cancer risks. The cancer risk is provided on the following map. This is based on 80 chemicals from the 181 chemicals in the NATA. It should be noted that the potential carcinogenic risk from diesel PM is not addressed because there currently is no unit risk estimate available.  

In addition, 2 million people – less than one percent of the total population- have an increased cancer risk of greater than 100 in 1 million. The population is identified on the following map. 

The non-cancer neurological risk is provided on the following map. Of the 21 air toxics showing the potential for neurological effects, manganese is the most significant, contributing greater than 90% of the nationwide average non-cancer hazard.  

The respiratory risk is provided on the following map. Of the 43 air toxics showing the potential for respiratory effects, acrolein is the most significant, contributing about 90 percent of the nationwide average non-cancer hazard.  

Additional information on the 2002 NATA can be found here. 

This article was excerpted from publically available information, and was authored by Joyce Gentry, Acacia Environmental Group LLC.  For more information on the author see here.

EPA Proposes to Approve WV DAQ Reg 18 Commercial and Industrial Solid Waste Incinerator Rule

               EPA proposed on August 3, 2009 (74 Fed Reg 147), to approve the latest revisions to WV DAQ Regulation 18 (45CSR18) that streamlines the state regulatory structure for incinerator units into one rule incorporating Clean Air Act Section 129 requirements. Section 129 of the CAA regulates a mixture of air pollutants. These pollutants include organics (dioxins/furans), carbon monoxide, metals (cadmium, lead, mercury), acid gases (hydrogen chloride, sulfur dioxide, and nitrogen oxides) and particulate matter (including opacity). The approval is proposed as a direct final rule and will take effect October 2, 2009 unless adverse comments are received.  

               The initial West Virginia DAQ Commercial and Industrial Solid Waste Incinerator (CISWI) plan and related DAQ rule, Regulation 18, were approved by EPA on April 11, 2003. The plan approval was codified at 40 CFR part 62, subpart XX. On May 11, 2009, the West Virginia DAQ submitted a formal 111(d)/129 plan revision for CISWI units to EPA. The plan revision is part of an effort to streamline and consolidate DAQ's Clean Air Act section 129 requirements for CISWI and hospital, medical infectious waste incinerator (HMIWI) units. All applicable section 129 incinerator regulatory requirements are now in one state rule, regulation 18. However, the August 3 approval action relates only to CISWI units. A plan revision for HMIWI units will be published separately. 

This article was authored by Skipp Kropp, Jackson Kelly PLLC. For more information on the author see here.

West Virginia’s Waste Rules: 2009 Revisions Proposed by WVDOT and WVDEP

The West Virginia Department of Transportation (WVDOT) and West Virginia Department of Environmental Protection (WVDEP) are proposing revisions to three waste-related rules for the 2010 West Virginia Legislative Session. The three rules and proposed revisions are as follows:

Ø                  The WVDOT – Division of Highways is proposing revisions to 157 C.S.R. 7, “Transportation of Hazardous Wastes upon the Roads and Highways”. As its name indicates, Series 7 regulates the transportation of hazardous wastes by vehicle upon the roads and highways of West Virginia. The regulations apply if the transport requires a manifest under Section 6 of the West Virginia Hazardous Waste Management Rule, 33 C.S.R. 20. The current rule incorporates by reference federal and state statutes and regulations in effect as of July 1, 2007 and July 1, 2008, respectively. The proposed revisions merely change the dates to July 1, 2008, to incorporate changes to the federal regulations at 40 C.F.R. and 49 C.F.R. and to July 1, 2009 to incorporate changes made last year to the West Virginia Hazardous Waste Management Rule, 33 C.S.R. 20. The changes are necessary to maintain full federal funding of West Virginia’s hazardous waste program. The proposed rule was filed in the Office of the West Virginia Secretary of State June 26, 2009, and the comment period ends August 1, 2009.

Ø                  The WVDEP – Division of Water and Waste Management is proposing revisions to 33 C.S.R. 1, “Solid Waste Management Rule” (SWMR). The proposed revisions are in Section 4 concerning landfill performance standards and include removing the requirements in 33 C.S.R. § 33-1-4.12.b.3 that free day tonnage count toward monthly/daily totals. The revised language reads: “Free day tonnage must be included in each monthly report, but shall not count against the facility’s monthly or daily tonnage limit.” The proposed rule would also clarify the definition of pick-up truck. Section 4.14.a.2 of the current rule defines a “pick-up truckload” in terms of cargo weight rating and reads as follows: “‘One (1) pick-up truckload, or its equivalent’ means a vehicle manufacturers specified or recommended cargo weight rating. The cargo weight rating does not include the weight of the vehicle, fuel and passengers. For example, a one-half ton pick-up truck may have a cargo weight rating of 1100 lbs. and one ton pick-up truck may have a cargo weight rating of 2000 lbs”. The proposed rule would define a “pick-up truckload” in terms of weight and reads: “‘One (1) pick-up truckload, or its equivalent’ means no more than five hundred (500) pounds”. In addition, technical revisions and corrections are made throughout the proposed rule. The SWMR was last promulgated in 2006. The proposed SWMR was filed in the Office of the West Virginia Secretary of State June 12, 2009, and the comment period ended July 14, 2009.

Ø                  The WVDEP – Division of Waste Management is proposing revisions to 33 C.S.R. 20, “Hazardous Waste Management System” (HWMR). The proposed rule would adopt and incorporate by reference the federal regulations set forth in 40 C.F.R. Parts 260 and 279 that are in effect as of June 1, 2009, with the exception of two federal amendments that U.S. EPA is currently reconsidering. The two exceptions are: (1) the “Revisions to the Definition of Solid Waste” that was published in the Federal Register on October 30, 2008 (73 Fed. Reg. 64668); and (2) the “Expansion of RCRA Comparable Fuel Exclusion” that was published in the Federal Register on December 19, 2008 (73 Fed. Reg. 77954). In addition to updating the date of the federal rules incorporated by reference, the proposed rule would adopt two new federal rules: the Academic Laboratory Waste Rule published on December 1, 2008 (73 Fed. Reg. 72912) and Amendment to Hazardous Waste Code F019 published on June 4, 2008 (73 Fed. Reg. 31756). The Academic Laboratory Waste Rule allows alternative requirements for hazardous waste determination and accumulation of unwanted materials at laboratories owned by colleges and universities and other affiliated entities. The Amendment to Hazardous Waste Code F019 expands the exclusion for F019 waste code, sludges generated from the chemical conversion coating of aluminum using a zinc phosphating process. The F019 waste code exclusion applies only to the automobile or light truck manufacturing industry. The HWMR was last promulgated in 2009. The proposed HWMR was filed in the Office of the West Virginia Secretary of State June 10, 2009, and the comment period ended July 21, 2009. For additional information on the waste rules being proposed by the WVDOT and WVDEP for adoption by the 2010 West Virginia Legislature, contact Gale Lea Rubrecht at 304-340-1200 or galelea@jacksonkelly.com. 

This article was authored by Gale Lea Rubrecht, Jackson Kelly PLLC. For more information on the author see here.